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  • E.V v G.V (2024-143960) [2025] ZAGPPHC 869 (17 …

E.V v G.V (2024-143960) [2025] ZAGPPHC 869 (17 August 2025)

60 Reportability
Family Law
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Brief Summary

Divorce — Interim relief — Rule 43 application — Applicant seeking maintenance and legal fees — Requirement for full and frank disclosure of financial position — Applicant failed to disclose significant investment and contributions from respondent — Court unable to determine need for maintenance or legal costs — Application struck off the roll.

Comprehensive Summary

Case Note


E […] V […] v G […] V […] (Case number 2024-143960) [2025] ZAGPPHC ‑ Gauteng Division, Pretoria (17 August 2025)


Reportability


This judgment is reportable because it provides an authoritative restatement of the principles that govern applications brought under Rule 43 of the Uniform Rules of Court. The court not only revisits the purpose of Rule 43, namely to afford swift and inexpensive interim relief in matrimonial litigation, but also emphasises the paramount duties of candour, brevity and good faith that rest on litigants who invoke the rule.


In addition, the judgment synthesises and applies a substantial line of earlier authorities dealing with non-disclosure, prolixity and the equitable nature of interim maintenance and costs orders. The clarity with which the court links those principles to the discretionary power to strike a matter from the roll will serve as persuasive precedent in future Rule 43 proceedings.


Finally, the decision is significant because it demonstrates a robust judicial response to abuses of process in the form of unnecessary supplementary affidavits and inflated claims. In doing so, it contributes to the broader jurisprudence aimed at curbing delay and cost in family law litigation.


Cases Cited


Taute v Taute 1974 (2) SA 675 (Eastern Cape Division).


Cotman v Cotman 1967 (1) SA 291 (Cape Provincial Division).


Smit v Smit 1978 (2) SA 720 (Witwatersrand Local Division).


Du Preez v Du Preez (16043/2008) [2008] ZAGPHC 334 (Gauteng High Court, Pretoria).


Buttner v Buttner 2006 (3) SA 23 (Supreme Court of Appeal).


Carstens v Carstens 1985 (2) SA 351 (South Eastern Cape Local Division).


Nicholson v Nicholson 1998 (1) SA 48 (Witwatersrand Local Division).


Glazer v Glazer 1959 (3) SA 928 (Witwatersrand Local Division).


E v E and Related Matters 2019 (3) All SA 519 (Gauteng Division, Johannesburg).


Du Preez v Du Preez 2009 (6) SA 28 (Tshwane High Court).


Legislation Cited


The Uniform Rules of Court, especially Rule 43 in its entirety, together with particular reference to sub-rule 43(5).


The Divorce Act 70 of 1979 forms the statutory backdrop to the parties’ pending divorce action and the correlative duty of support.


Rules of Court Cited


Rule 43 of the Uniform Rules of Court, including the provisions governing founding and answering statements, and the limitation on the filing of further affidavits.


HEADNOTE


Summary


The applicant wife sought an interim maintenance award of R20 000 per month and a contribution of R200 000 towards her legal costs pending the finalisation of divorce proceedings. She also asked for leave to deliver supplementary affidavits. The respondent husband opposed the application, revealed substantial assets already transferred to the applicant and argued that her material non-disclosure barred relief.


Marx du Plessis AJ held that Rule 43 proceedings must be brief, candid and confined to essential facts. Both parties’ affidavits were excessively prolix, but the applicant’s failure to make full disclosure of a R4 million inheritance investment and other benefits was decisive. Because her omission meant the court could not reliably determine need or ability to pay, the application could not succeed.


The court struck the matter from the roll without a costs order, signalling that litigants who approach the court with “unclean hands” risk losing the interim protection of Rule 43.


Key Issues


The first issue concerned whether the applicant had met the high duty of full and frank disclosure required in Rule 43 proceedings. The second issue was whether prolix supplementary affidavits could be accepted when the original papers were deficient. The third issue revolved around the substantive merits of the claim for interim maintenance and a contribution to legal costs in light of the assets already transferred to the applicant.


Held


The court found that the applicant’s omission of a substantial inheritance investment and other payments constituted a material failure to disclose. Such lack of candour justified refusing relief. Prolix affidavits that undermine the purpose of Rule 43 are an abuse of process. Because the court was unable to assess the applicant’s need or the respondent’s ability to pay on the unreliable papers, the application was struck off the roll and no order as to costs was made.


THE FACTS


The parties were married out of community of property with accrual on 11 January 1997 and have one adult son who is still dependent. They separated in August 2023 when the applicant left the matrimonial home. Shortly thereafter they engaged in mediation and concluded a settlement agreement in October 2023. In terms of that agreement the respondent purchased a house for the applicant for R1,35 million, paid all attendant transfer and relocation costs, and placed R3,08 million into an investment account in her name, on the understanding that she would not access those funds until the divorce was finalised.


Despite those provisions, the applicant launched Rule 43 proceedings in which she requested monthly maintenance and a legal-costs contribution. She disclosed the house purchase and the investment but contended she had been “manipulated” into the settlement. Crucially, she failed to reveal that she held an inheritance investment worth approximately R4 million producing undisclosed returns. That fact became known only through the respondent’s answering affidavit.


Both parties then exchanged voluminous supplementary affidavits. The applicant attempted to explain the omission and presented a detailed but belated account of her expenses. The respondent responded in kind, criticising the prolixity and insisting that the application be dismissed for non-disclosure and abuse of process.


THE ISSUES


The court had to decide whether the applicant’s failure to disclose substantial assets disentitled her to interim relief under Rule 43. It also had to determine whether, despite the rule’s prohibition on a third set of affidavits, the supplementary papers should be allowed and, if so, what weight they should carry. Finally, it was required to assess, on the information properly before it, whether the applicant had demonstrated a genuine need for maintenance and a contribution towards legal costs, and whether the respondent had the capacity to satisfy such obligations.


ANALYSIS


Marx du Plessis AJ began by re-affirming the purpose of Rule 43 as an expedited and inexpensive mechanism for interim relief in matrimonial disputes. The rule envisages concise sworn statements that approximate a declaration and plea, allowing the court to make an equitable order on limited papers. Lengthy, argumentative affidavits frustrate that purpose and constitute an abuse.


Against that backdrop, the court scrutinised the applicant’s founding statement. Eleven of its nineteen pages were devoted to allegations about alcoholism, employment history and marital discord, none of which bore on the quantification of need or means. More critically, the statement omitted any reference to the R4 million inheritance investment and the income it produced, as well as other sizeable amounts already provided by the respondent. The court held that such omissions breached the duty of uberrima fides and tainted the application with unclean hands.


Turning to the supplementary affidavits, the court observed that Rule 43 does not ordinarily permit a replying affidavit. Exceptions exist only in truly exceptional circumstances, which were absent here. The applicant could not cure her defective founding papers by filing further affidavits once the respondent had exposed the omissions. Allowing such a tactic would encourage strategic concealment and undermine the efficiency of Rule 43.


Because the applicant’s credibility was compromised and the correct financial picture was unclear, the court concluded it could not reliably assess maintenance or legal-cost contributions. The equitable discretion under Rule 43 was therefore exercised against granting any relief, and the matter was struck from the roll.


REMEDY


The court ordered that the application be struck off the roll, thereby refusing the interim maintenance and legal-costs contribution sought. No costs order was made, the court evidently considering that the parties were spouses engaged in matrimonial litigation and that a punitive cost award would not be just in the circumstances.


LEGAL PRINCIPLES


The judgment entrenches several key principles in South African matrimonial procedure. First, litigants invoking Rule 43 must act with the utmost good faith and disclose all material financial information; failure to do so can justify outright dismissal. Second, affidavits in Rule 43 proceedings must be concise and relevant; prolixity is itself an abuse of the rule. Third, the discretion under Rule 43 is equitable and broad, enabling the court to strike a matter from the roll or refuse relief where justice so demands.


The decision further illustrates that a claim for interim legal-costs contributions is inseparable from the parties’ respective means and must be evaluated alongside maintenance. Finally, it highlights the court’s intolerance for strategic litigation tactics designed to conceal assets or inflate need, reinforcing that interim relief is a privilege conditioned on scrupulous honesty.

1. REPORTABLE : ¥ES/NO
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number : 2024-143960
In the matter between:
E [ .... ] V [ .... ] APPLICANT
and
G [ .... ] V [ .... ] RESPONDENT
JUDGMENT
MARX DU PLESSIS, AJ

2
Introduction
(1] This is an application in terms of Rule 43 of the Uniform Rules of Court in which
the applicant seeks interim relief pending the finalisation of the divorce action
between the parties.
[2] The applicant claims, inter alia, a contribution towards her maintenance in the
sum of R20,000.00 and a contribution towards her legal fees in the sum of
R200,000.00.
[3] Both the applicant and the respondent sought leave to deliver supplementary
affidavits in terms of Rule 43(5). The reasons advanced for these supplementary
affidavits, as well as the court's approach thereto, will be dealt with later in this
judgment.
[4] It is, however, necessary at the outset to emphasise the nature and purpose of
Rule 43 proceedings. Rule 43 was designed to provide parties with a swift,
inexpensive and effective remedy for interim relief in matrimonial matters. The
Rule requires parties to deliver sworn statements in the nature of a declaration
and plea, setting out concisely the relief claimed and the grounds therefor. The
object being to ensure that such matters are resolved expeditiously and
inexpensively.

3
Background
(5) The parties were married to one another out of commun ity of property, subject
to the accrual system, on 11 January 1997. One child was born of the marriage,
a son, EV . Although EV has attained the age of majority, he is not yet self­
supporting. The respondent presently bears sole responsibility for EV's
maintenance.
(6) The parties have not cohabited since August 2023, when the applicant vacated
the erstwhile matrimonial home. EV remained in the care of the respondent.
[7] Apart from making payment of the applicant's monthly medical aid premiums,
the respondent has made no cash contribution towards the maintenance of the
applicant since she vacated their erstwhile matrimonial home.
[8] Shortly after the applicant vacated the erstwhile matrimonial home, the parties
engaged in mediation w hich culminated in the conclusion of a settlement
agreement during October 2023.
[9] In terms of the settlement agreement, the respondent undertook and performed
the following obligations:

4
[9.1] He purchased an immovable property to the value of R1 ,350,000.00
which was subsequently registered in the name of the applicant. This
immovable property serves as the applicant's residence.
[9.2) He paid the conveyancing cost, water and electricity connection fees,
and related expenses in the sum of R81,500.00.
[9.3] He paid an amount of RS0,000.00 as contribution towards the applicant's
relocation cost.
[9.4) He transferred the sum of R3,080,000.00 into an investment account
nominated by the applicant and made payment of the associated
administration fees and taxes. (These funds are not to be accessed or
utilised by the applicant pending the finalisation of the divorce action.)
[1 OJ The applicant, while disclosing the conclusion of the settlement agreement,
contends that she was manipulated into signing it. She nevertheless confirms
that the respondent purchased the immovable property and caused it to be
registered in her name, and that he continues to pay her monthly medical aid
contributions.

5
[11] Furthermore, the applicant confirms that the transfer of the investment funds
was effected, and that the parties are agreed she may not access these funds
pending the finalisation of the divorce.
(12] The applicant has, however, failed to disclose in her founding affidavit the
balance of the sums paid by the respondent, and she has not disclosed that she
is possessed of an investment to the value of R4,000,000.00, derived from an
inheritance, or what returns this investment yields.
(13] It is common cause that this latter investment is excluded from the applicant's
estate for the purposes of calculating the accrual.
[14] The applicant's R4,000,000.00 investment, derived from an inheritance, was
disclosed not by the applicant herself, but by the respondent in his sworn
statement. The applicant then elected to address the content of the
respondent's sworn statement in what she styled as a replying affidavit, to which
the respondent in turn delivered a supplementary affidavit.
Legal principles
[15] Each Rule 43 application falls to be determined on its own facts. Despite this,
certain foundational principles governing such applications have become well­
established in our courts. These principles are, inter alia:

6
[15.1] The purpose of Rule 43 applications is to provide swift, effective
and inexpensive relief in matrimonial matters, pending the
finalisation of the main action.1
(15.2} Rule 43 contemplates brevity. Affidavits should approximate the
form of a declaration or plea and should contain only such
information as is strictly necessary for the court to make an
equitable interim determination. Prolixity and unnecessary detail
are to be avoided.2
(15.3] Prolixity in a Rule 43 proceeding constitutes an abuse of process
because it defeats the very purpose and object of the Rule.3
[15.4] There is tendency in Rule 43 applications for parties, whether
acting expediently or strategically, to misrepresent the true nature
of their financial affairs. This often takes the form of an
exaggeration of expenses or an understatement of income, only
to be corrected later when confronted with contrary evidence.
Such conduct undermines the integrity of Rule 43 proceedings.
Consequently, applicants who seek equitable relief under Rule 43
1 Taute v Taute 1974(2) 675 (EC)
2 Cotman v Cotman 1967(1) SA 291 (c) at 292A
3 Smit v Smit 1978(2) SA720 (W)

(15.5]
7
are under a duty to act with the utmost good faith (uberrima tides).
They must make a full and frank disclosure of all material facts
relating to their financial affairs. A failure to do so, whether by
misstatement or omission, means that the applicant approaches
the court with unclean hands, and on that basis alone a court is
justified in refusing relief.4
A fundamental principle underpinning any award of maintenance
is the consideration not only of the ability of the spouse from
whom maintenance is sought to pay, but equally the
demonstrated need of the party claiming maintenance.5
[ 15.6] Maintenance claims must be reasonable and moderate.
Extravagant, inflated, or unjustified claims may undermine the
entire application. 6
[15.7] There should be a level playing field in relation to party
representation.7 The scale upon which the parties litigate, and the
4 Du Preez v Du Preez (16043/2008) [2008) ZAGPHC 334
s Buttner v Buttner 2006 (3) SA 23 (SCA)
6 Carstens v Carstens 1985 2 SA 351 (SE)
7 Nicholson v Nicholson 1998 (1) SA 48 (W) at S0C -G

(15.8]
8
manner in which the trial proceeds, must take proper account of
the respective means of the parties.8
Rule 43 applications deviate from ordinary motion proceedings in
that they do not permit the filing of a third set of affidavits. This
underscores the duty on an applicant to place all pertinent
information before the court in the founding affidavit.9
[15.9] As stated, an applicant in Rule 43 proceedings bears an obligation
to act with the utmost good faith and to make full and frank
disclosure of his or her financial position. The penalty for such
non-disclosure may be as severe as the outright refusal of the
application. 10
[16] It is against the backdrop of the foregoing principles, the voluminous papers
placed before this Court, and the arguments advanced on behalf of the parties
that this matter falls to be determined.
8 Glazer v Glazer 1959(3)(SA} 928 (W)
~Ev E and related matters 2019 3 All SA 519
10 Du Preez v Du Preez 2009 (6) SA 28 (T)

9
Prolixi!l
[17] In terms of Rule 43, an applicant is required to deliver a sworn statement in the
nature of a declaration, setting out the relief claimed and the grounds therefor,
while the respondent's sworn statement is to take the form of a plea. Such
statements are intended to be concise. The parties are accordingly obliged to
place before the court only such evidence and information as is necessary and
relevant for the determination of the application, and to refrain from prolix,
verbose, or irrelevant matter.
[18] Both parties' sworn statements, which include the supplementary affidavits
filed, fall foul of the principles outlined above.
(19] The applicant's sworn statement extends over nineteen pages, of which
approximately eleven are devoted to irrelevant allegations concerning her
employment history, alcoholism, and the respondent's alleged role therein. In
all of these pages of unnecessary matter, no information whatsoever is
furnished regarding the applicant's investment and the return it yields. This
omission is striking as it cannot be denied that such information is essential, as
it bears directly on the applicant's need for maintenance and her ability to
maintain herself.

10
[20] In response, the respondent delivered a sworn statement spanning fifty pages,
much of wh ich is characterised by verbosity and unnecessary elaboration,
extending well beyond what is required for the purpose of a Rule 43 application.
[21] The respondent's sworn statement, which disclosed the applicant's investment
and the balance of the payments made to her, prompted the applicant to file a
replying affidavit. This replying affidavit spans a further nineteen pages. In turn,
the respondent delivered yet another sworn statement, styled a supplementary
affidavit.
(221 The circumstances of this application, as reflected in the numerous and lengthy
affidavits before me, are not exceptional so as to justify the unacceptable length
and content of the papers. A failure to frame Rule 43 statements in accordance
with the spirit, purpose, and requirements of the Rule constitutes an abuse of
process.
[23) Had the applicant made a full and frank disclosure of her financial position, as
required, there would have been no need for either party to deliver further
affidavits. I am not persuaded that there exists any justification for the inordinate
prolixity evident in the papers before me.

11
Failure to make a full disclosure
(24] As appears from the preceding paragraphs, a further matter of concern is the
applicant's misstatement of the true nature of her financial affairs. Not only did
the applicant fail to disclose a significant investment, and the returns yielded by
such investment, but she also omitted to disclose the further substantial
contributions made to her by the respondent in terms of the disputed settlement
agreement.
(25] It is a common feature of Rule 43 applications that parties inflate their expenses
or understate their income, only later, when confronted with contrary evidence,
seeking to amend and supplement their papers through the filing of further
affidavits. Such a practice is neither acceptable nor permissible.
(261 The fact that the applicant conceded, only in a replying affidavit, which is
ordinarily not permitted, and only after the disclosure was made by the
respondent, that she holds an investment of R4,000,000.00 and has received
further sums and contributions from the respondent, demonstrates that the
applicant failed to make a full and frank disclosure of her finances in her
founding affidavit. The applicant accordingly approaches this Court with
unclean hands.

12
[27] Such conduct undermines the integrity of Rule 43 proceedings and of court
orders granted pursuant thereto. It follows that where an applicant fails to act
with the requisite candour, the relief sought may properly be refused outright.
[281 Rule 43 empowers the court to "dismiss the application or make such order as
it thinks fit to ensure a just and expeditious decision." The discretion is
essentially an equitable one and must be exercised judicially, with due regard
to all relevant considerations.
Conclusion
[29) On the limited information disclosed by the applicant, it is impossible for this
Court to determine whether the applicant has a need for maintenance and, if
so, in what amount, and consequently whether the respondent is in a position
to meet such a need.
[30] A claim for a contribution towards legal costs flows from the duty of support
owed between spouses and must take proper account of the respective means
of the parties. Given this Court's inability to determine the applicant's means,
her claim for a contribution towards legal costs cannot be determined.

13
[31] Having considered the evidence and the authorities cited above, I am unable to
find that the applicant has established the requisite need for maintenance or for
a contribution towards her legal costs.
Q[Qfil
In the result, I make the following order:
1. The application is struck off the roll.
2. No order as to costs is made.
Date of hearing:
Date of order:
APPEARANCES
On behalf of the applicant:
12 August 2025
17 August 2025
Adv M Coetzee
On behalf of the respondent: Adv S Barreiro
Gauteng Division, Pretoria

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